Fixed-Term Contracts in Higher Education and Research - A Guide - GEW
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The German
Education Union
// HIGHER EDUCATION AND RESEARCH //
Fixed-Term Contracts in
Higher Education and
Research
A Guide
Including the Provisions of the 2007 Act (Wissenschaftszeitvertragsgesetz)
as amended in 2016 and 2020
www.gew.dePublished by
Gewerkschaft Erziehung und Wissenschaft –
The German Trade Union for Education and Research
Executive Board
Legally liable for content: Dr Andreas Keller
Reifenberger Str. 21
D-60489 Frankfurt am Main
Phone: 069/78973-0
Fax: 069/78973-202
E-mail: info@gew.de
www.gew.de
Authors: Dr Rainer Hansel, Matthias Jähne
Editors: Dr Andreas Keller, Stefani Sonntag
Copy editor: Andrea Vath
Translation: Katherine Vanovitch
Design: Karsten Sporleder
Photographs: Kay Herschelmann
Printed by: Druckerei Leutheusser
Catalogue no.: 2171
For orders of up to 9 copies, please contact: broschueren@gew.de
Fax: 069/78973-70161
Orders of 10 copies or more from the GEW Shop: www.gew-shop.de
gew-shop@callagift.de
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Brochure price: € 1.20 plus postage and package.
4th, revised edition, published in German 2016
January 2022Contents 3
Contents
Preface5
The Rules for Fixed-Term Academic Contracts 7
1. Background and history of the Act (WissZeitVG)7
2. What is new from 2016? What has been added in 2020? 8
3. Who falls within the scope of WissZeitVG? 13
4. Where does WissZeitVG apply? 15
5. Fixed-term contracts linked to pursuing a qualification 15
6. When are doctoral studies deemed to start and end? 19
7. Fixed-term contracts linked to third-party funding 19
8. Periods included within contracts linked to pursuing a qualification 20
9. Periods not included within contracts linked to pursuing a qualification 21
10. Family policy and disability policy components 23
11. New fixed-term rules for student employment 25
12. Examples: How long can fixed-term contracts be applied? 26
13. Fixed-term contracts governed by standard employment law 28
Tips and advice 29
The full wording of the Act: an English translation 31
The Ordinance issued by the Federal Ministry of Education and Research 35
The GEW – a strong union for higher education and research 37
Fixed-Term Contracts in Higher Education and ResearchPreface 5
Preface
Dear colleague,
The new legislation on fixed-term contracts in higher education and research which
entered into force on 17 March 2016 was a milestone for our trade union. The GEW had
placed the nightmare of fixed-term employment at higher education institutions and
research institutes on the political agenda of the German government and parliament, the
federal states, and the higher education institutes themselves, with a campaign for a
dream job in academia (Traumjob Wissenschaft). The campaign began with the Templin
Manifesto in 2010 and culminated in autumn 2015 with a nationwide week of action.
In January 2016, the Bundesrat – the upper chamber of the German parliament – gave its
approval to the amended Wissenschaftszeitvertragsgesetz (WissZeitVG) as adopted by the
Bundestag, the lower chamber. The GEW would have preferred to see more rigorous and
far-reaching reforms to the previous legislation on fixed-term contracts in higher education
and research, but the amended Act did at least incorporate many of our suggestions. It
creates a stronger framework for us to champion fair employment in the academic world.
But we have no reason to rest on our laurels.
This was borne out by the first evaluation of the amended Act of 2016 performed by Dr
Freya Gassmann at the University of the Saarland with the support of the Max-Traeger-
Stiftung and presented by the GEW in March 2020 to the 10th follow-up congress to the
Templin Manifesto. The new law is having an effect … a minor one. That just about sums up
the evaluation’s findings. Whereas in 2015, the year before the amendment, fixed-term
contracts accounted for 90 per cent of academic staff at universities, in 2018 the figure
was still 89 per cent, a drop by one percentage point. As for the duration of these fixed-
term contracts (first contracts), Gassmann concludes from her analysis of advertised
vacancies that the new law trigged a moderate average increase by four months – from 24
to 28.
And so, as far as our criticisms in 2016 are concerned, the chickens have come home to
roost. Although the amended Act did pick up some important input from the draft
legislation submitted by our trade union in 2015, it failed to define legal concepts, leaving
the provisions vague and, as it now turns out, not very effective. If, for example, fixed-term
contracts are not funded by third parties, they must serve the acquisition of a qualification
and their duration must be appropriate. Unfortunately, the legislator did not set out what
might qualify as a “qualification” or explain what duration would be “appropriate”. The
principals and HR directors of higher education and research establishments were quick to
adopt a very liberal interpretation of these unspecified terms.
Fixed-Term Contracts in Higher Education and Research6 Preface
This makes it all the more important that academics who are affected by the legislation, as
well as works councils and staff committees, acquaint themselves thoroughly with the Act
and bring their influence to bear on its implementation at their local higher education
institution or research institute. We have compiled this Guide to offer practical orientation
to employees and their representatives around the application of the new Act. Apart from
explanatory notes on the provisions of the law itself, this booklet contains advice and
concrete examples. The Act itself has only eight sections, and yet to many it remains a
mystery. Sooner or later – and certainly when their contract is about to expire – they will
need to confront the implications. Every time a fixed-term contract is renewed, unsettling
questions arise about whether there is any long-term future and what the conditions for
that might be. For those not appointed as professors, permanent career prospects are still
a rarity in the academic world. So by this stage, if not before, a proper grasp of the
provisions on fixed-term contracts is essential in order to confront the often one-sided
readings put forward from the employer’s perspective.
Thanks to the Guide’s authors, Matthias Jähne and Dr Rainer Hansel, we were able to
publish this Guide more or less as the new Act came into force in 2016 and can now issue a
third, revised edition. This version of the Guide includes the additional provisions that were
incorporated into the Wissenschaftszeitvertragsgesetz with the adoption on 25 May 2020
of a new piece of legislation on support for academics and students, the Wissenschafts-
und Studierendenunterstützungsgesetz, which took effect retrospectively from 1 March
2020. This latest, Covid-driven amendment to the Act itself, and also to the related
ordinance (WissBdVV) of September 2020, has made it possible, on grounds of the
pandemic, to extend the maximum duration of fixed-term contracts associated with
obtaining a qualification beyond the previous 12-year cap (or 15-year cap in medicine).
Good advice is costly – but not for members of the GEW. Apart from reading this Guide, all
our members can benefit from the personal legal advice and, if they need it, legal protec-
tion provided by the union. Our campaigns pay off, and so does membership.
I hope that this updated Guide will help you to negotiate your way more easily around the
fixed-term labyrinth. We welcome suggestions and improvements to the Guide, whether
they derive from counselling practice or from your personal experience.
Dr Andreas Keller
Vice-President of the GEW and
Board Member in charge of Higher Education and Research
back
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 7
The Rules for Fixed-Term
Academic Contracts
1. Background and history of the Act (WissZeitVG)
Since March 2007, the specific provisions governing fixed-term contracts in higher educa-
tion and research have been laid out in a separate piece of sectoral legislation called the
Fixed-Term Academic Contracts Act – the Wissenschaftszeitvertragsgesetz, or WissZeitVG
for short. These rules had previously been included in the Higher Education Framework Act
(Hochschulrahmengesetz, or HRG). When the grand coalition of Social Democrats and
Christian Democrats enacted the new law, they expanded the existing basis for fixed-term
contracts in the academic world, in particular by permitting fixed-term employment in the
sphere of third-party funding and allowing this to include non-academic staff.
At the same time, the scope of the Fixed-Term Academic Contracts Act was explicitly
extended to cover all staff in academic and artistic posts. This created new problems and
new insecurities, because higher education institution began using the law to fix terms of
employment for teachers and lecturers without having to give substantiate the need on
objective grounds.
Fortunately, the Federal Labour Court placed a partial brake on this practice in June 2011
in response to proceedings brought by the GEW (see Chapter 3).
The new Act also introduced a “family policy component”, enabling the maximum duration
of successive fixed-term academic contracts to be extended by two years per child. This
provision was an optical illusion from the start, as employees had no legal entitlement to
the extension. As was only to be expected, higher education institutions and research
institutes rarely make use of the option.
The seeds for a paradigm shift in the rules governing fixed-term academic contracts had
already been sown in 2002 by a coalition of Social Democrats and Greens. The idea behind
that reform had been to link fixed-term contracts to a qualification period rather than
providing specific objective grounds for limiting the duration of employment. Without
citing any objective reason, fixed-term contracts could now be concluded for a maximum
of six years prior to a doctorate and for another maximum of six years after being awarded
a doctorate (nine years in medicine). Theoretically, once this period had been exhausted
and the qualification period was over, employment would become permanent.
Fixed-Term Contracts in Higher Education and Research8 The Rules for Fixed-Term Academic Contracts
The stated political intention at the time was to rein in the rampant use of fixed-term
contracts in higher education and research and to offer more research associates perma-
nent employment in line with the European directives. As we now know, that objective was
not met. Placing an overall cap on fixed-term academic contracts did not encourage higher
education institutions and research institutes to increase the amount of permanent
employment. Quite the reverse: they made frequent use of the option to limit the length
of employment without having to provide an objective reason. Moreover, academic
organisations exerted considerable pressure on politicians to broaden the scope for
fixed-term employment. That pressure resulted in the initial law on fixed-term academic
contracts, the Wissenschaftszeitvertragsgesetz of 2007, which offered employers an
additional risk-free opportunity to issue repeated fixed-term contracts, this time in
conjunction with third-party funding.
The amendments to that Act which came into force on 17 March 2016 have now laid the
groundwork for correcting some of those errors and forging a more cogent link between
fixed-term contracts and the pursuit of a qualification. In the following chapters, we will
set out the new provisions and explain them in the overall context of the Act.
2. What is new from 2016? What has been added in 2020?
2.1. Q
ualification only justifies fixed-term employment if it is actually
being pursued (§ 2 paragraph 1 sentences 1 and 2)
The principle remains that there is a six-year cap on fixed-term contracts for academic and
artistic staff who do not yet have a doctorate. Once a doctorate has been awarded, there is
a second six-year cap (nine years in medicine) on fixed-term contracts, (but with additional
options to limit the duration of employment when projects are funded by third parties or
else on the basis of general employment legislation on fixed-term contracts [for example,
when the employee has been recruited to stand in for someone on leave], see Chapters 7
and 13).
What is new here is that this type of fixed-term contract is now only allowed if the
employee takes the job in order to facilitate his or her pursuit of an academic or artistic
qualification. This applies to fixed-term contracts both before and after completing a
doctorate.
Although the law refrains from requiring that the employment contract must stipulate a
qualification goal and define a specific number of working hours to be set aside for that
purpose, the fact that a fixed-term contract must now be associated with facilitating the
employee’s academic or artistic qualification means that a qualification goal (such as a
doctorate) must be identified when concluding the contract. It makes sense to include this
qualification goal in the contract as well, or at least to have it recorded in written form and
the document given to the employee.
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 9
2.2. D
uration of contract must reflect qualification pursued
(§ 2 paragraph 1 sentence 3)
There is a new requirement that, when fixed-term contracts are taken in pursuit of an
academic or artistic qualification (see 2.1), the duration of the contract must appropriately
reflect the qualification pursued.
Although the law refrains from establishing a minimum term (the GEW wanted a minimum
of three years) and from imposing any specific requirements about duration, the new
provisions do require employers to provide a concrete, substantiated assessment when
concluding the contract as to what duration they consider necessary or “appropriate” for
the qualification pursued. If the qualification goal is a doctorate, for example, this will be
the average time taken to achieve a doctorate in that particular field. It can be assumed, as
a general rule, that this will not be less than three years. Indeed, the culture or statistics of
a particular discipline might indicate that a longer period is appropriate. If the higher
education institution or research institute concerned has defined a minimum duration, this
will also be relevant. Minimum periods are commonly defined in service agreements and
voluntary undertakings, but they may also be found in institutional agreements or in the
rules for doctoral candidates. Whatever the circumstances, there must be some cohesion
between the qualification goal and the duration of employment.
2.3. Third-party funding: contract duration must reflect project duration
(§ 2 paragraph 2)
There is a new requirement that when third-party funding is given as a reason for fixing
the term of an employment contract, as provided in § 2 paragraph 2 of the Act, the dura-
tion of the contract must reflect the approved duration of the project.
This is a binding requirement. Deviations are only permitted in exceptional circumstances,
if a third-party project has been broken down into clearly demarcated subsections. This
needs to be substantiated when concluding the contract and it must be unambiguously
confirmed by the grant approval notices. Tranche payments of third-party funds for an
overall project are not a reason for reducing the length of contracts. There must be
cohesion between the duration of the project and the duration of the contract.
Even when funding comes predominantly from a third party, the term of a contract can still
be limited under § 2 paragraph 1 (the qualification provision) if it is associated with a
qualification goal. The advantage of this is that the provisions of § 2 paragraph 5 on not
including specific interruptions (e.g. maternity or parental leave) in the contract period can
still be applied.
Fixed-Term Contracts in Higher Education and Research10 The Rules for Fixed-Term Academic Contracts
2.4. Non-academic staff have been removed from the scope
(§ 2 paragraph 2)
New: “non-academic” staff (such as technicians and administrators) can no longer be
offered fixed-term contracts under this Act. The situation prior to 2007 has been restored,
whereby the term of a contract can only be fixed on the basis of general employment law,
i.e. the Part-Time and Fixed-Term Employment Act (see Chapter 13). Otherwise non-acade-
mic staff must be given permanent contracts, especially when they are engaged in perma-
nent functions at the higher education instituion or research institute.
2.5. Not only a family policy component, but also a disability policy
component; broader definition of “child” (§ 2 paragraph 1
sentences 5 and 6)
The overall cap (maximum admissible duration) of six plus six years (six plus nine in medi-
cine) for a qualification period can be extended by another two years per child if the
employee has been looking after a child under 18. The law now clearly states that this
includes non-biological children with whom there is a firm family relationship. This applies
in particular to step-children and foster children. This adjustment to the definition of
“child” reflects the definition in the Parental Allowance and Parental Leave Act.
The “disability policy component” is a new feature. The overall cap (maximum admissible
duration) of six plus six years (six plus nine in medicine) for a qualification period can now
be extended by two years in the event of a disability as defined in § 2 paragraph 1 of Social
Code IX or a severe chronic disease.
What constitutes a disability is legally defined in § 2 paragraph 1 of Social Code IX. What is
understood by a “severe chronic disease” is set out in the guidelines issued by the Federal
Joint Committee for implementing the provisions of § 62 of Social Code V for those
suffering severe chronic disease.
There is, however, still no legally enforceable obligation for an employer to apply this
extension and conclude a further fixed-term contract under § 2 paragraph 1 WissZeitVG
once the six-plus-six-year maximum has been exhausted. Moreover, these options to
extend do not apply to third-party funding contracts explicitly concluded under § 2
paragraph 2 WissZeitVG.
2.6. Entitlement to extend the contract due to specific interruptions
broadened to include periods of illness after sick pay expires
(§ 2 paragraph 5, new no. 6)
Fixed-term contracts concluded in accordance with § 2 paragraph 1 on grounds of qualifi-
cation (before or after a doctorate) are extended, as provided by § 2 paragraph 5, to
compensate for certain clearly stipulated interruptions. These include, for example, mater-
nity and parental leave. This provision is designed to ensure that the originally agreed
contractual qualification period remains available in full despite these breaks.
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 11
The new bullet point relates to interruptions due to illness after the entitlement to sick
pay from the employer – whether it is statutory or founded on a collective agreement –
has expired (which usually means after being off sick for six weeks). A contract concluded
under § 2 paragraph 1 will now be extended by this period too if the employee has
consented to the extension. The employee is legally entitled to this.
As previously, the entitlements to extension in accordance with § 2 paragraph 5 do not
apply to contracts concluded with explicit reference to third-party funding under § 2
paragraph 2 of the Act.
2.7. Interruptions to qualification-based contracts are not included when
calculating the cap on duration (§ 2 paragraph 5 last sentence)
The amended Act, unlike earlier versions, now clearly stipulates that in the case of qualifi-
cation-based contracts the periods of interruption listed in § 2 paragraph 5 must not on
any account be included when calculating the maximum duration of six or nine years.
To the extent that § 2 paragraph 5 permits such periods to result in an extension of
contract, these periods must not be included when calculating the maximum duration of
fixed-term employment. It is no longer a requirement that a contract is or was formally
extended by this amount of time. This means, for example, that even when switching
employer the employee still benefits from the non-inclusion of earlier interruptions when
calculating the maximum period of fixed-term employment.
2.8. N
ew separate rules on student employment (new § 6); employment
as assistant during Master cycle no longer counts towards
qualification-based contracts (§ 2 paragraph 3 last sentence)
The Act creates a new, separate legal basis for the fixed-term employment of students
(in-course employment) in higher education institutions and research institutes. It provides
that students enrolled at a higher education institutions in Germany can conclude fixed-
term employment contracts to engage in auxiliary academic or artistic activities for up to
six years.
These rules only apply to in-course employment for the performance of auxiliary academic
and artistic activities. Student employment in other fields may also be subject to fixed-
term contracts in line with general employment law. Studying must be the student’s
priority, and consequently only jobs involving less than half the regular working hours will
qualify as “in-course” employment. The definition also includes contracts with “academic
auxiliaries” (wissenschaftliche Hilfskräfte) if their employment is “in-course” – for example,
carried out while participating in a course leading to a Master’s degree.
According to this new § 6, periods spent under contract as a student employee while
studying (in-course employment) will not be included when calculating the maximum
duration of qualification-based fixed-term employment (six plus six or six plus nine years).
Fixed-Term Contracts in Higher Education and Research12 The Rules for Fixed-Term Academic Contracts
The Act clearly stipulates that this also applies to periods spent studying for a Master’s
degree or on a course leading to a further professional qualification. Comparable in-course
employment on fixed-term contracts based not on the new § 6 but on other legal instru-
ments (such as the Part-Time and Fixed-Term Employment Act) will also not count towards
calculating this maximum duration.
A person enrolled at a higher education institution for the pursuit of a doctorate will not
be covered by this rule. If “doctoral students”, apart from pursuing their research, have a
fixed-term employment contract to carry out academic activities at a higher education
institution or a research institute, the time they spend working under this contract will
count towards the first (pre-doctoral) six-year qualification period (as long as working
hours are more than one quarter of regular working hours).
2.9. Extension in 2020: addition of a Covid-19 component
The Covid-19 pandemic and the crisis it triggered in 2020 not only imposed broad con-
straints on public life in many countries, but also led to the closure or severely restricted
operation of education institutions and research institutes. This created major obstacles to
teaching, research and personal plans for acquiring academic qualifications. Against this
background, additional provisions on the options for limiting qualification periods were
introduced by an amendment incorporated into the Fixed-Term Academic Contracts Act,
which entered into force in May 2020 with retrospective effect from 1 March 2020, and by
an Ordinance on a further extension to the permissible duration of fixed-term employment
pursuant to the Act (WissBdVV), which entered into force on 1 October 2020. These new
provisions extended the cap on fixed-term employment by twelve months for those
qualification contracts pursuant to § 2 (1) of the Act that were effective between 1 March
2020 and 30 September 2020 – i.e. to 13 years and 16 years in medicine. It does not matter
whether the contract was effective for the entire period from March to September 2020: It
is sufficient in both cases for the contract to have been in place at any point during the
periods described. The cap on fixed-term employment for any qualification contracts
pursuant to § 2 (1) that were concluded between 1 October 2020 and 31 March 2021 was
extended across the board by six months – i.e. to 12½ years, in medicine 15½ years. It does
not matter when the contract was concluded in the period from October 2020 to March
2021. It is conceivable in both cases that employment during these lockdowns lasted for
less than six months, in extreme cases perhaps for only one day, e.g. until 1 March 2020 or
from 31 March 2021.
There is no objective reason for the Federal Ministry to establish a shorter extension to the
maximum limit on fixed-term employment in the case of contracts established after 30
September 2020 than for contracts falling within the period between March and Septem-
ber 2020. The GEW criticised this unequal treatment, for which no substantiation was
provided, in its statement responding to the new Ordinance.
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 13
These options to extend as a result of Covid-19 have the same status as the family and
disability policy components: there is no legal entitlement to ensure that the employer
really does apply the extended limit and prolong the fixed-term contract. The GEW
emphatically criticised this lack of enforceability in its statements in response to both the
draft legislation and the Extension Ordinance.1 The GEW is urging higher education and
research institutes to conclude agreements with their works and staff councils on a simple,
unbureaucratic extension of contracts for everyone affected in compensation for the
disadvantages caused by the pandemic. The GEW has produced a model agreement to sup-
port local efforts in these establishments (in German): www.gew.de/mustervereinbarung.
The six-year maximum for fixed-term student employment contracts as set out in § 6 of the
Act was not extended, despite a recommendation submitted by the GEW.
3. Who falls within the scope of WissZeitVG?
According to § 1 paragraph 1 WissZeitVG, its specific provisions on fixed-term employment
in the academic sphere apply to all academic and artistic staff with the exception of
professors at higher education institutions (§ 1 paragraph 1 sentence 1) and research
institutes (§ 5). Who exactly constitutes the academic and artistic staff is, therefore, a
decisive question. Initially, the legal view (also reflected in commentaries on the Act by legal
scholars) was that this should be considered in the light of the legislation in force in the
federal state concerned. In Berlin, for example, this would mean that, according to § 112 of
Berlin’s Higher Education Act, teachers recruited on the basis of their specialist expertise
would rank as academic staff. In a case taken by the GEW involving a language lecturer from
Baden-Württemberg, the Federal Labour Court (BAG) put an end to this interpretation with
its ruling of 1 June 2011 (7 AZR 827/09)2. The Court reasoned that the Act on Fixed-Term
Academic Contracts was independent in defining its personal scope of application, and that
this definition could not be subject to legislation in the federal states. Accordingly, “aca-
demic staff” in the meaning of the Act only referred to such persons as also performed an
academic service and were predominantly engaged in academic functions.
Extract from the Federal Labour Court ruling of 1 June 2011
(7 AZR 827/09):
“Academic activity is anything which can be regarded in content and form as a
serious, planned attempt to convey knowledge (BAG 19 March 2008 – 7 AZR 1100/06
– pt 33 MWN, BAGE 126, 211).
1 For the German text of these statements see www.gew.de/stellungnahmeWissStudUG and
www.gew.de/stellungnahmewissbdvv.
2 http://www.bundesarbeitsgericht.de/ (convenience translation provided by GEW)
Fixed-Term Contracts in Higher Education and Research14 The Rules for Fixed-Term Academic Contracts
It is designed, in terms of the tasks defined and the methods applied, to gain and
process new insights, to secure or expand the state of knowledge about the academic
discipline concerned (cf. BAG 27 May 2004 – 6 AZR 129/03 – on B II 4 of grounds,
BAGE 111, 8).
Academic service can essentially include imparting specialist knowledge and practical
skills to students and instructing them in the use of academic methods. However, aca-
demic activity only constitutes a teaching role insofar as the person teaching retains
the opportunity for independent research and reflection (…).”
Teachers and lecturers who primarily perform instructive functions (for example, in
teaching a foreign language) do not, in the Court’s opinion, meet this criterion. The
duration of their contracts cannot, therefore, be limited on the basis of the Act on Fixed-
Term Academic Contracts. Things might be different if the teachers concerned had fewer
teaching duties, were also engaged in academic scholarship and research, or were pursuing
a qualification (such as a doctorate), as long as this formed part of their employment
contract. Any qualification or research in which they are engaged outside the employment
contract will not be taken into account – and this also applies to part-time employment.
The same essentially applies to new staff categories introduced in recent years under the
higher education legislation of several federal states (such as “Hochschuldozent*in”,
“Lecturer”, “wissenschaftliche*r Mitarbeiter*in mit Schwerpunkt Lehre” and similar job
designations). If research and/or the pursuit of academic qualifications are not explicit
components of the contractual arrangement, with a concomitant reduction in the time
devoted to teaching duties, a fixed term cannot be applied to these employment contracts
on the basis of WissZeitVG. As a rule, these teachers should have permanent contracts,
although every case should be considered on its individual merits.
The amendments enacted in 2016 did not implement the GEW’s demand that teaching
staff, lecturers and other employees fulfilling predominantly teaching functions should be
explicitly excluded from the scope of the Act. However, as fixed-term contracts can only be
concluded without objective grounds for a maximum of six plus six or six plus nine years if
they facilitate the employee’s pursuit of an academic or artistic qualification, the leeway
for employing teaching staff and those in similar functions under fixed-term contracts
under WissZeitVG is extremely limited.
The academic and artistic staff who fall within the scope of the Act include:
• all academic and artistic employees,
• auxiliary academic staff.
However, if the latter have taken in-course employment (i.e. they are enrolled as
students), the only provision which applies to them, as for all student employees, is the
new § 6.
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 15
WissZeitVG does not apply to teachers and lecturers with the following designations:
• Hochschullehrer*innen (professors, including junior professors),
• Lehrkräfte, Lektor*innen, Hochschuldozent*innen and wissenschaftliche Mitarbeiter*innen
mit Schwerpunkt Lehre (teachers and lecturers), if pursuing an academic or artistic
qualification or engaging in research is not an explicit component of their contractual
agreement, and if their teaching obligations are not reduced as a consequence.
4. Where does WissZeitVG apply?
§ 1 paragraph 1 and § 3, 4 and 5 of the Act stipulate that these special rules on fixed-term
employment apply in the following establishments:
• public higher education institutions,
• private higher education institutions which have obtained official approval under the law
of a federal state,
• public research institutes (such as research institutes operated by a federal or state
organisation),
• research institutes which
• are maintained primarily by public funds (e.g. foundations),
• receive their institutional funding (i.e. basic funding) predominantly from public
revenues,
• are funded in accordance with Article 91 b of the Constitution (facilities forming part
of the Leibniz-Gemeinschaft, Helmholtz-Gemeinschaft, Fraunhofer-Gesellschaft or
Max-Planck- Gesellschaft)3
• and when “private service contracts” are concluded with members of a higher education
institutions (usually professors).
5. Fixed-term contracts linked to pursuing a qualification
Fixed-term contracts can be concluded for a maximum of six years before and again after
obtaining a doctorate (Promotion). In the medical field, the maximum period after a
doctorate is nine years. Chapter 8 explains what is included when calculating this period.
The effective date is the date the doctorate is awarded. There is, however, no legal
entitlement to the full application of the maximum periods.
An exception to this maximum was introduced for fixed-term qualification contracts
concluded during the Covid-19 pandemic period from 1 March 2020 to 30 September 2020,
extending the cap across the board by 12 months. For fixed-term qualification contracts
concluded between 1 October 2020 and 31 March 2021, the limit has been extended across
the board by six months. It does not matter whether the contract was effective for the
3 Source: Ulrich Preis, Kommentar zum WissZeitVG, Luchterhand, 2008
Fixed-Term Contracts in Higher Education and Research16 The Rules for Fixed-Term Academic Contracts
entire period from March to September 2020 or from October 2020 to March 2021. It is
sufficient for the contract to have been in place at any point during the periods described.
There is a new provision that fixed-term employment is only permitted if it is taken to
facilitate the employee’s own academic or artistic qualification. (In addition to this,
fixed-term employment is allowed in conjunction with third-party funding and in accor-
dance with general legislation on fixed-term employment – for example, when standing in
for an employee on leave, see Chapters 7 and 13.) These fixed-term contracts can be taken
before or after a doctorate.
The specific calculation rules for fixed-term employment linked to a qualification are as
follows:
a. Without a doctorate (§ 2 paragraph 1 sentence 1 WissZeitVG):
Academic and artistic staff who do not have a doctorate can conclude fixed-term
contracts for a maximum of six years if the employment is taken to facilitate their own
academic or artistic qualification. In this case, the qualification goal will usually be the
doctorate.
b. With a doctorate (§ 2 paragraph 1 sentence 2 WissZeitVG):
After the doctorate has been awarded, fixed-term employment contracts are permitted
for another maximum of six years (nine years in medicine), if the employment is taken to
facilitate one’s own academic or artistic qualification. It makes no difference whether
the employee already had a contract before obtaining the doctorate.
c. “Bonus rule” if the doctorate took less than six years (§ 2 paragraph 1 sentence 2
WissZeitVG):
If periods of employment prior to completing the doctorate and periods spent rese-
arching for the doctorate without being employed amount together to less than six
years, the maximum period of fixed-term employment after completing the doctorate
will be extended by this “unused” time. This makes it possible to conclude fixed-term
employment contracts for longer than six years (or nine years in medicine) under these
rules during the second phase of qualification (see 5b).
Note: When calculating how long it took to obtain the doctorate, periods without employ-
ment are also included – in other words, the pursuit of a doctorate with or without a grant,
or while still on a graduate course, including abroad. The rationale for this is that the law is
simply seeking to “reward” rapid qualification (see Chapter 12, examples 1 to 3).
New: These fixed-term contracts are predicated on a qualification
Fixed-term employment pursuant to § 2 paragraph 1 WissZeitVG (before and after the
award of a doctorate) is now only permitted if it facilitates the employee’s pursuit of an
academic or artistic qualification.
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 17
Although the law refrains from requiring that the employment contract must stipulate a
qualification goal, the fact that a fixed-term contract must now be associated with
facilitating the employee’s academic or artistic qualification means that a qualification
goal must be agreed and designated when concluding the contract. Otherwise fixing the
term of the employment might not be legally effective.
Since the amendment to the Act – and unlike the previous legal position, when no grounds
at all had to be given for concluding a fixed-term contract – establishing the qualification
goal forms part of the recruitment and renewal procedure for contracts pursuant to § 2
paragraph 1 WissZeitVG. It makes sense to include the qualification goal in the employ-
ment contract. At the very least, it should be recorded in written form and the document
should be issued to the employee (like a PhD agreement). The employment contract must
state that the term has been fixed pursuant to the Wissenschaftszeitvertragsgesetz.
What exactly counts or does not count as a qualification in the meaning of the Act will
presumably be a matter for debate in coming years and even exercise the labour courts. In
the light of case law to date, we can assume that employment only facilitates qualification if
• there is a defined qualification goal,
• there is a structured approach towards achieving that goal, and
• the achievement of the qualification goal is in some way certified or demonstrated. This
does not require a formal examination.
The mere fact of working academically or in an academic environment does not constitute
sufficient grounds for fixed-term employment. The qualification concerned must actually
exert an influence on the nature of the employment.
In some federal states, jobs associated with acquiring a qualification must also meet
certain standards. In many Länder, academic staff in qualification-based posts must be able
to spend at least a third of their agreed working hours engaged in independent academic
work (cf. § 31 Higher Education Act of Lower Saxony, § 71 Higher Education Act of
Schleswig-Holstein, § 110 Higher Education Act of Berlin, § 28 Higher Education Act of
Hamburg, § 37 Higher Education Act of Saxony-Anhalt, § 84 Higher Education Act of
Thuringia, § 65 Higher Education Act of Hesse).
What are eligible qualification goals?
In the phase before a doctorate has been concluded (the first six-year phase), the qualifi-
cation goal should be and typically will be a doctorate (Promotion). Whether employment
in a programme to prepare for a doctorate constitutes a qualification goal is a matter for
consideration. Other qualification goals may need to be assessed on a case-by-case basis in
the light of the criteria described above.
In the phase following the award of a doctorate, qualification goals can be defined more
broadly. Possibilities include establishing eligibility for a professorship, the pursuit of a
Fixed-Term Contracts in Higher Education and Research18 The Rules for Fixed-Term Academic Contracts
post-doctoral thesis (Habilitation) or the acquisition of an equivalent to Habilitation, but
even the acquisition of specific knowledge and skills of scholarship. Here again, advanced
qualification goals may have to be assessed on a case-by-case basis in the light of the
criteria described above. Mere reference to acquiring broader subject knowledge should
not, however, constitute sufficient grounds for a fixed-term qualification-based contract.
The question as to whether a particular contract is designed to facilitate the employee’s
academic or artistic qualification or whether this is simply a pretext can be tested in full
before a court. Ultimately this will determine whether the fixed term is legally effective.
Court rulings in the next few years will indicate how narrowly or broadly these new rules
are to be interpreted. GEW members can draw on the advice and legal support of the
trade union to have their fixed-term status reviewed.
New: The duration of the contract must be appropriate to the
qualification sought (§ 2 paragraph 1 sentence 3)
In fixed-term contracts to facilitate the employee’s academic or artistic qualification (before
and after a doctorate), the duration of the contract must from now on be an appropriate
reflection of the qualification sought.
Although the law refrains from establishing a minimum term (the GEW wanted a minimum
of three years) and from imposing any specific requirements about duration, the new
provisions do require employers to provide a concrete, substantiated assessment when
concluding the contract as to what duration they consider necessary or “appropriate” for
the qualification pursued. This means that when a qualification goal is designated the
employer must always examine and determine the appropriate duration of the contract. If
the qualification goal is a doctorate, for example, this will be the average time taken to
achieve a doctorate in that particular field. It can be assumed, as a general rule, that this
will not be less than three years. It is more likely that the culture or statistics of a particular
discipline might indicate that a longer period is appropriate. If the higher education
institution or research institute concerned has defined a minimum duration, this will also
be relevant. Minimum periods are commonly defined in service agreements and voluntary
undertakings, but they may also be found in institutional agreements or in the rules for
doctoral candidates. Other possible sources are guidelines, codes of conduct and other
voluntary undertakings by higher education institutions or research institutes.
There must be some cohesion between the qualification goal and the duration of the
contract. “If no formal qualification goal is to be pursued, the specific fixed duration should
be functional, i.e. primarily geared to the periods of time which are reasonable for the
academic or artistic qualification” (preamble to the Bill for the initially proposed amend-
ment to the Act, Bundestag Document 18/6489). As the term “appropriate” is fuzzy and
has no legal definition, we shall have to await the case law for interpretations of this rule in
relation to the various qualifications pursued. GEW members can draw on the advice and
legal support of the trade union to have their fixed-term status reviewed.
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 19
6. When are doctoral studies deemed to start and end?
Sometimes there is no easy answer. Higher education institutions and research institutes
usually ask this question before concluding a contract. The dates need to be backed up by
documentation. The information provided must be truthful. The start of doctoral studies is
usually the date of enrolment as a doctoral candidate. For those who pursue their doctorate
as part of an employment agreement, and in some other cases, the crucial date will usually be
the date when admission to the procedure was granted. If there is no clear documentation,
the date given by the candidate in the questionnaire will apply.
There is no definition in the Act or anywhere else in federal law of when a doctoral
procedure ends. The case law (BAG, ruling of 20 January 2010, 7 AZR 753/08) and the
literature agree that the provisions of the Higher Education Act in the state concerned and
the applicable rules for the PhD procedure should be taken as a basis. According to § 35
paragraph 5 sentence 1 of Berlin’s Higher Education Act, a doctorate is awarded on the
basis of a PhD examination. If an examination committee decides pursuant to the rules of
procedure that the candidate has passed the PhD, then the doctoral education must end at
the latest when the examination result is published as set out in § 2 paragraph 1 sentence 2
WissZeitVG (LAG Berlin-Brandenburg, ruling of 5 August 2014, AZ 16 Sa 589/14). The fact
that the certificate may have been issued on a later date is of no consequence.
7. Fixed-term contracts linked to third-party funding
The situation whereby employment is financed primarily from third-party funding was
recognised by the 2007 version of the Act as an independent ground for imposing a fixed
term on contracts. Fixed-term contracts based on third-party funding can be concluded
whether or not the maximum duration for fixed-term employment linked to a qualification
as provided by § 2 paragraph 1 (six plus six years) has been exhausted.
The amendments to the Act which came into force in 2016 removed non-academic staff
from the scope of § 2 paragraph 2. Fixed-term contracts with non-academic staff working
on third-party projects can now only be concluded on the basis of the Part-Time and
Fixed-Term Employment Act (see Chapter 13) – which had been the position before 2007.
The reason most likely to be given for a fixed term will be the one set out in § 14 paragraph
1 no. 1 of the Part-Time and Fixed-Term Employment Act, i.e. the argument that “the
function is only required temporarily by the institution”. It must be adequately foreseeable
when concluding the contract that the requirement for this function really will end when
the contract expires. Otherwise the staff predominantly engaged in non-academic tasks
(e.g. in the technical field, administration, knowledge management and libraries) should be
employed on permanent contracts, especially when they are performing functions for
which there is a permanent need in the institution. See Chapter 3 for the differentiation
between academic and non-academic functions.
Fixed-Term Contracts in Higher Education and Research20 The Rules for Fixed-Term Academic Contracts
The criteria for concluding a fixed-term employment contract on the basis of third-party
funding are, according to § 2 paragraph 2 WissZeitVG:
• the employment is predominantly (more than 50 per cent) financed from third-party
funding,
• the funding has been approved for a specific purpose and period,
• the employees will be predominantly engaged in tasks relating to the purpose for which
the third-party funding has been granted.
Contract duration must reflect project duration
The amended Act of 2016 includes a new provision that “the fixed term determined by the
parties should reflect the approved project duration”. This is a binding requirement.
Deviations are only permitted in exceptional circumstances, such as when a third-party
project has been broken down into clearly demarcated subsections. This needs to be
substantiated when concluding the contract and it must be unambiguously confirmed by
the grant approval notices. Tranche payments of third-party funds for an overall project
are not a reason for reducing the length of contracts. There must be cohesion between the
duration of the project and the duration of the contract.
The employment contract must state that the term has been fixed pursuant to the
Wissenschaftszeitvertragsgesetz.
Note: The rules on extending fixed-term contracts (for example, after maternity or
parental leave) in accordance with § 2 paragraph 5 of the Act do not apply to contracts
based on the third-party funding provision (see Chapter 12, Example 7). The employer does
have the option, however, of concluding contracts for third-party projects on the basis of
the qualification provision in § 2 paragraph 1. In that case, the rules on extending fixed-
term contracts apply. This does, of course, require a qualification to be stipulated.
8. Periods included within contracts linked to pursuing a qualification
The cap on the duration of fixed-term contracts linked to a qualification (six plus six / nine
years as stated in § 2 paragraph 1) does include the following periods, as set out in § 2
paragraph 3:
• any employment under a fixed-term contract taken by members of the academic and
artistic staff at a German higher education institution or at a public research institute or
a research institute predominantly funded by public money, regardless of the legal basis
chosen to fix the term (exception: auxiliary academic or artistic tasks while studying),
• any employment taken under a private service contract (for example, with a professor)
pursuant to § 3,
• any period of employment entailing temporary civil servant (Beamte*r) status (for ex-
ample, wissenschaftliche Assistent*innen, Oberassistent*innen, Hochschuldozent*innen,
Juniorprofessor*innen),
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 21
• any employment under contract as an academic auxiliary, as long as this employment
was not taken while studying,
• any employment under a third-party funding contract as defined in § 2 paragraph 2.
In all these cases, the period will count towards the maximum duration if the employment
accounted for more than a quarter of the regular working hours considered to be
standard in the area concerned.
It is safe to assume that non-academic employment is not counted when calculating the
maximum duration of fixed-term contracts linked to a qualification. Although the law does
not specifically say so, all the commentaries describe the situation in these terms.4
However, there have not yet been any court rulings on the matter.
Student employment:
The amended Act of 2016 established a new legal basis for not including in-course student
employment when calculating the maximum duration (§ 2 paragraph 3 last sentence): periods
under contract as a student employee while pursuing studies (in-course employment) pursu-
ant to the new § 6 (see Chapter 11) do not count towards calculating the maximum duration of
qualification-based fixed-term contracts (six plus six or six plus nine years). The new provision
explicitly states that this also applies to the Master cycle or periods of study leading to a
further professional qualification. Comparable in-course employment for which the term is
not fixed pursuant to the new Section 6 but on the basis of other legislation (e.g. the Part-Time
and Fixed-Term Employment Act) is also not included in the calculation.
These rules do not apply to students who have enrolled at a higher education institute in
order to pursue a doctorate. When “doctoral students” take fixed-term academic employ-
ment, alongside researching for their doctorate, at a higher education institute or research
institute, the period under this contract will count towards the first six-year qualification
period (if the working hours account for more than a quarter of the standard working
hours).
9. Periods not included within contracts linked to pursuing a qualification
If the employee’s current contract has a fixed term on qualification grounds, as set out in
§ 2 paragraph 1 WissZeitVG, its duration will be extended under § 2 paragraph 5 to
compensate for the periods listed below, as long as the employee consents. This consent
must be lodged in written form at the workplace in good time. The purpose of this rule is
to ensure that the originally agreed contractual qualification period remains available in
full despite the following breaks:
4 Cf. for example Ulrich Preis, Kommentar zum WissZeitVG, Luchterhand, 2008, marginal 94 on § 2
Fixed-Term Contracts in Higher Education and Research22 The Rules for Fixed-Term Academic Contracts
• Leave of absence or a shorter working week (hours reduced by at least one fifth) to look
after or nurse a child under 18 years of age or a relative in need of care – up to a maximum
of two years.
The amended Act of 2016 now clearly states that this includes non-biological children
with whom there is a firm family relationship. This applies in particular to step-children
and foster children. This adjustment to the definition of “child” reflects the definition
in the Parental Allowance and Parental Leave Act.
• Periods of leave granted for an academic or artistic activity or a course of initial, further
or continuous academic, artistic or professional training outside higher education or
abroad, up to a maximum of two years.
• Periods on maternity leave, or when not permitted to work during pregnancy, and
periods on parental leave pursuant to the Parental Allowance and Parental Leave Act –
but only to the extent that no gainful employment was being pursued.
• Periods of basic military service or alternative civilian service.
• Periods of exemption from employment duties (for at least one fifth of standard working
hours) in order to carry out activities on the staff or works council, for a body representing
employees with disabilities, as a women’s or equality officer, or to exercise an elected
office (e.g. in a parliament) – up to a maximum of two years.
A new item was added in 2016:
• Periods of sickness after the expiry of sick pay as provided by law or a collective agree-
ment.
Unlike the previous version, the amended Act of 2016 clearly provides that the interruptions
to a qualification-based fixed-term contract listed in § 2 paragraph 5 do not count towards
the cap of six or nine years. The precise periods which are not included when calculating
the cap are those which are eligible to be offset by an extension of contract in accordance
with § 2 paragraph 5. If, for example, academic leave was granted to spend three years
abroad, only two years will be excluded when calculating maximum duration. The contract
no longer needs to be formally renewed by the relevant period. This means, for example,
that even when switching employer the employee still benefits from the non-inclusion of
earlier interruptions when calculating the maximum period of fixed-term employment.
Example:
Following a doctorate, commencement of a two-year qualification-based contract
under § 2 paragraph 1 WissZeitVG,
after one year on this contract, leave to spend six months researching abroad,
after return, resumption of post for the remaining six months, followed by a new post
at a different university (with a different employer):
• The next fixed-term qualification-based contract can last four years and six months
(prior to the amendment it would only have been four years, as the option to
extend the contract was not taken up).
Fixed-Term Contracts in Higher Education and ResearchThe Rules for Fixed-Term Academic Contracts 23
In contrast to the “family policy component” and “disability policy component” described
in § 2 paragraph 1 (see Chapter 10), there is a legal entitlement to have the above-
mentioned periods excluded from calculations of maximum duration and to have the
contract extended!
Note: These rules still do not apply to employees who have fixed-term contracts on the
grounds of third-party funding pursuant to § 2 paragraph 2. They have no legal entitle-
ment to extend their contract – for example, following parental leave.
10. Family policy and disability policy components
The total permissible maximum duration of qualification-based fixed term contracts is
extended from the usual maximum of twelve (in medicine fifteen) years
• by two years per child if the employee has cared for one or more children under 18 years
of age (§ 2 paragraph 1 sentence 4)
• and/or (new) by two years if the employee has a disability as described in § 2 paragraph
1 Social Code IX or a severe chronic disease (§ 2 paragraph 1 sentence 6).
The amended Act of 2016 now clearly states that the “family policy component” includes
non-biological children with whom there is a firm family relationship (§ 2 paragraph 1
sentence 5). This applies in particular to step-children and foster children.
This adjustment to the definition of “child” reflects the definition in the Parental Allowance
and Parental Leave Act. If both parents are academically employed and both look after the
child, the total permissible maximum duration is extended by two years for both parents.
The option to extend applies for every child, and so with two children both parents can
extend by four years. To obtain the extension, it is sufficient for the child or children to be
living in the shared household and for the parent to exercise the care function. Taking
parental leave is not a requirement. It is of no consequence at what stage of the qualifica-
tion the care is exercised. In other words, the care factor is also taken into account if the
parent was engaged in doctoral education at the time but not in employment. The law
makes no stipulations with regard to the duration of care.
What constitutes a disability is legally defined in § 2 paragraph 1 of Social Code IX.
§ 2 paragraph 1 Social Code IX:
“A person is disabled if his or her physical function, mental capacity or psychological
health is highly likely to deviate for more than six months from the condition which is
typical for the respective age and whose participation in the life of society is there-
fore impaired (…).”
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